District Court, West Jordan Department The Honorable William
K. Kendall No. 141401851
B. Ayres, Attorney for Appellant
R. Montgomery and Rachel E. Otto, Attorneys for Appellee
Stephen L. Roth authored this Memorandum Decision, in which
Judges David N. Mortensen and Jill M. Pohlman concurred.
Before us is an interlocutory appeal from a denial of a
motion to dismiss criminal charges that implicates the Fifth
Amendment's Double Jeopardy Clause. We affirm.
In late 2013, Defendant Ian Summerhays allegedly violated a
protective order by contacting his ex-wife via text message,
and South Jordan City charged him with two counts of
violating a protective order as a result. The prosecutor
charged the violations as class B misdemeanors and filed the
criminal information in South Jordan City Justice Court.
Summerhays pleaded guilty to one count and began serving a
ten-day jail sentence.
¶3 Summerhays immediately appealed his conviction to the
district court, where he moved to dismiss the charges as
improperly filed. In the motion, Summerhays noted that
justice courts have no jurisdiction to consider any criminal
charge above a class B misdemeanor. He also correctly pointed
out that violation of a protective order is classified by
statute as a class A misdemeanor. Compare Utah Code
Ann. § 78A-7-106(1) (LexisNexis Supp. 2016)
(“Justice courts have jurisdiction over class B and C
misdemeanors, violation of ordinances, and infractions
committed within their territorial jurisdiction by a person
18 years of age or older.”), with id. §
76-5-108(1) (“Any person . . . who intentionally or
knowingly violates [a protective order] . . . is guilty of a
class A misdemeanor[.]”). Accordingly, Summerhays
argued that the justice court lacked jurisdiction to
adjudicate the charged offenses.
The district court agreed and concluded that the justice
court lacked subject matter jurisdiction over the alleged
crimes. Cf. id. § 78A-7-106(1). The court
therefore vacated his conviction, dismissed the case, and
released him from jail. By the time of his release,
Summerhays had already served seven days of his ten-day jail
term. South Jordan then filed a new information against
Summerhays, this time correctly charging the violations as
class A misdemeanors and properly filing the case in district
Summerhays moved to dismiss the charges against him, arguing
that the Double Jeopardy Clause prevents him ‚from
being twice put in jeopardy [of punishment] for the same
crime.‛ The district court rejected that argument and
ruled that ‚jeopardy did not attach in the justice
court case because the South Jordan City Justice Court did
not have jurisdiction in that original action." On that
reasoning, the court denied the motion to dismiss and
Summerhays took an interlocutory appeal to this court.
Because a "trial court's grant or denial of a motion
to dismiss is a question of law, ' the "standard of
review . . . is correctness." State v. Griffin,
2016 UT 33, ¶ 15, 384 P.3d 186 (citation and internal
quotation marks omitted). A correctness standard "means
the appellate court decides the matter for itself and does
not defer in any degree to the trial judge's
determination of law." State v. Anderson, 929
P.2d 1107, 1108 (Utah 1996) (citation and internal quotation
The Fifth Amendment to the United States Constitution
provides that no person shall "be subject for the same
offence to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. This concept, known as double jeopardy,
is "fundamental to the American scheme of justice,
" Benton v. Maryland, 395 U.S. 784, 796 (1969)
(internal quotation marks omitted), and "stem[s] from
the underlying premise that a defendant should not be twice
tried or punished for the same offense, " Schiro v.
Farley, 510 U.S. 222, 229 (1994). Specifically, the
Double Jeopardy Clause protects criminal defendants against
(1) "a second prosecution for the same
offense after acquittal, " (2) "a
second prosecution for the same offense after conviction,
" and (3) "multiple punishments for the same
offense." Jones v. Thomas, 491 U.S. 376, 381
(1989) (citation and internal quotation marks omitted).
The question presented in this appeal is whether jeopardy
attached during Summerhays' initial prosecution in
justice court and if so, whether the City was thereby barred
from refiling the charges against him in the district court.
That question in turn hinges on when, and in what
circumstances, jeopardy attaches to a defendant. The Supreme
Court "has consistently adhered to the view that
jeopardy does not attach, and the constitutional prohibition
can have no application, until a defendant is put to trial
before the trier of facts, whether the trier be a jury or a
judge. " Serfass v. United States, 420 U.S.
377, 388 (1975) (citation and internal quotation marks
omitted). "In the case of a jury trial, jeopardy
attaches when a jury is empaneled and sworn. In a nonjury
trial, jeopardy attaches when the court begins to hear
evidence." Id. If neither circumstance applies,
then "[i]n general, jeopardy attaches at the time the
guilty plea is accepted." United States v.
Avila-Gonzalez, 611 F.App'x 801, 803 (5th Cir.
2015); accord State v. Horrocks, 2001 UT App 4,
¶ 26, 17 P.3d 1145 ("Jeopardy, however, attached
when the justice court accepted defendant's
Here, Summerhays argues that jeopardy attached. However, it
is well settled "that before a person can be said to
have been put in jeopardy of life or limb the court in which
he was acquitted or convicted must have had jurisdiction to
try him for the offense charged." Grafton v. United
States, 206 U.S. 333, 345 (1907). Thus, when
"a criminal defendant was never tried
by a court of competent jurisdiction, retrial is appropriate
and does not violate the Fifth Amendment to the United States
Constitution." State v. Payne, 892 P.2d 1032,
1033 n.5 (Utah 1995) (citation and internal quotation marks
Under this firmly established principle, it appears that
Summerhays was never in jeopardy because the justice court
lacked jurisdiction over the offenses charged, which were by
statute class A misdemeanors and beyond the scope of the
justice court's authority. We now turn to Summerhays'
arguments to determine whether they ...